Jesus Sandoval v. Harrison Chow, M.D.		CASE NO. 114CV264550
DATE: 14 November 2014	TIME: 9:00	LINE NUMBER: 20

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 13 November 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 14 November 2014, the motions of

1. Defendant Harrison Chow, M.D. to compel plaintiff to respond to form interrogatories, set one, custom interrogatories, set two, request for production of documents, set one, for an order deeming Defendant’s request for admissions, set one, to be admitted and for monetary sanctions; and
2. Forrest Surgery Center to compel Plaintiff to respond to requests for statement of damages, form interrogatories, set to one, special interrogatories, set two, request for production of documents, set one, and for an order an order deeming Defendant’s request for admissions, set one, to be admitted.

were argued and submitted.

Plaintiff did not file formal opposition to the motions.[1]

1. Statement of Facts.

This is an action for medical malpractice.  Plaintiff claims that Defendant Chow was negligent in placing a right interscalene block for post-shoulder arthroscopy pain control, resulting in complete arm numbness.

1. Discovery Dispute.

On 5 June 2014, Defendant Chow served its discovery.

On 11 June 2014, Defendant Forrest Surgery Center served its discovery.

III.     Analysis.

Although no meet and confer is required for this motion, the parties are always encouraged to work out their differences informally so as to avoid the necessity for a formal order.  (McElhaney v. Cessna Aircraft Co. (1982) 134 Cal.App.3d 285, 289.)

1. Request For Admissions.

Failure to timely respond to RFA does not result in automatic admissions.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) (“Weil & Brown”) at ¶8:1370.)  The propounder of the RFA must “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.”  (Id., citing Code of Civ. Proc. (“CCP”) § 2033.280(b).)  The Court should enter an order having the RFA be deemed admitted, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance.”  (CCP § 2033.280(c).)

A “court must grant a motion to have the mission requests deemed admitted where responses . . . were not in substantial compliance” with the Code of Civil Procedure.  (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal. App. 4th 1546, 1551, disapproved on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 983 (fn. 12.)

The motion of both Defendants for an order deeming their requests for admissions to be admitted is GRANTED.  The requests for admissions are deemed ADMITTED.

1. Form Interrogatories, Set to One, Special Interrogatories, Set One, and to Respond to Requests for Production of Documents, Set One.

To prevail on its motion, a party needs to show is that the discovery requests were properly served, that the time to respond has expired, and that no response of any kind has been served.  (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

If a party to whom interrogatories or demand for inspection are directed fails to serve a timely response, the party propounding the interrogatories or demand for inspection may move for an order compelling responses. Code Civ. Proc. § 2030.290(b) (interrogatories) § 2031.300(b) (response to demand).The party who fails to serve a timely response waives any right to object to the interrogatories or demands, including ones based on privilege or on the protection of work product. Code Civ. Proc. § 2030.290 (a) (interrogatories) § 2031.300(a) (response to demand for production).

To establish that a party did not serve a timely response to interrogatories or demands, the moving party must show that the responding party was properly served with the discovery request or demand to produce, that the deadline to respond has passed, and that the responding party did not timely respond to the discovery request or demand to produce. Code Civ. Proc. §§ 2030.080(a); 2030.060(a); 2030.290; § 2031.040; § 2031.260(a); § 2031.300.

The Defendants have provided proof of service for the first set of form interrogatories, special interrogatories, and inspection demands. The deadline for the Plaintiff to respond has lapsed and the Plaintiff has not timely responded to any of Defendants’ discovery requests.

Accordingly, the motions of the respective Defendants to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

1. Response to Requests for Statement of Damages

Code of Civil Procedure section 425.11 states, in pertinent part:

“(b) When a complaint is filed in an action to recover damages for personal injury or wrongful death, the defendant may at any time request a statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff, who shall serve a responsive statement as to the damages within 15 days. In the event that a response is not served, the defendant, on notice to the plaintiff, may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.

(c) If no request is made for the statement referred to in subdivision (b), the plaintiff shall serve the statement on the defendant before a default may be taken.”

The purpose of statute requiring a plaintiff to serve on the defendant a statement setting forth the nature and amount of damages being sought before a default may be taken is to give defendants one last clear chance to respond to allegations of complaints by providing them with actual notice of their exact potential liability.  (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 860.)

 

1. Sanctions.

Defendant Forrest Surgery Center does not make a request for monetary sanctions.

Defendant Chow makes makes a request for monetary sanctions.  In the notice of motion, Defendant correctly cited Rule of Court 3.1348(a) which states:

“The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

The request is code-compliant.  Code of Civil Procedure, § 2023.040.

1. Requests for Admissions.

Plaintiff requests monetary sanctions pursuant to Code of Civil Procedure, § 2033.280(c), which requires the Court to impose monetary sanctions on a party who fails to serve a timely response to RFA.  “Although delayed responses may defeat a motion to compel, they will not avoid monetary sanctions.”  (Weil & Brown, supra, at ¶8:1376, citing CCP § 2033.280(c).)  Plaintiff’s tardy responses and excuses do not preclude these mandatory monetary sanctions,  Thus, sanctions are warranted.

Plaintiff is ordered to pay the sum of $460 to counsel for Defendant within 20 days of the date of the filing of this Order.

2. Form Interrogatories, Set to One, Special Interrogatories, Set One, and to Respond to                                              Requests for Production of Documents, Set One.
3. Request for Response to Statement of Damages

A motion to compel a statement of damages is outside the Discovery Act, and as such, the Act’s sanctions, which include Code Civ. Proc. § 2023.020, cannot be utilized to punish Plaintiff’s misconduct in this regard.  See Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2013), pp. 8K-1-8K-2, [8:1757]-[8:1764].

However, dictum in Argame v. Werasophon (1997) 57 Cal. App. 4th 616, 619, fn.3, suggests that because of the counsel’s disregard for the procedures established in Code of Civil Procedure section 425.11, the court would have been justified to reimburse opposing counsel for costs incurred in making such a motion:

“Obviously, defendants should not have been placed in a position where they were obligated to make a motion to obtain information to which they were lawfully entitled. Considering counsel’s disregard for the requirements of Code of Civil Procedure section 425.11 displayed here, the court would have been justified in requiring Argame (or more appropriately her counsel) to reimburse defendants for costs incurred in making such a motion.”  (p. 619, fn.3.)

Defense counsel for Dr. Chow requests compensation at the rate of $337 per hour.  She spent two hours in the preparation of the motion and $60 for the filing fee.  She claims she will incur one hour of time to attend the hearing.  The Court will decline to award anticipated time (Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551) unless Plaintiff appears at the hearing to contest the matter.

Plaintiff is ordered to pay the sum of $734 to counsel for Defendant Chow within 20 days of the date of the filing of this Order.

 

 

 

 

 

 

 

1. Order.

The motion of Defendants Harrison Chow And Forrest Surgery Center for an order deeming their requests for admissions to be admitted is GRANTED.  The requests for admissions are deemed ADMITTED.

The motions of Harrison Chow And Forrest Surgery Center to compel responses to Defendant’s discovery requests is GRANTED.  Plaintiff is ordered to serve verified answers without objection within 20 days after the date of the filing of this Order.

Plaintiff is ordered to pay the sum of $734 to counsel for Defendant Chow within 20 days of the date of the filing of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] “The failure to file a written opposition or to appear at a hearing or the voluntary provision of discovery shall not be deemed an admission that the motion was proper or that sanctions should be awarded.”  Rule of Court 3.1348(b).